Re Eric John Honeysett v Derrick Windsor Hand and Director of Public Prosecutions [1985] FCA 69 (11 March 1985)

FEDERAL COURT OF AUSTRALIA

Re: ERIC JOHN HONEYSETT
And: DERRICK WINDSOR HAND and DIRECTOR OF PUBLIC PROSECUTIONS
No. G 407 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative Law - Judicial Review - natural justice - Administrative Decisions (Judicial Review) Act, 1977 - refusal of magistrate to permit evidence to be called by defendant in committal proceedings - Justice Act, 1902 s.41 - discretion to intervene - abuse of process - collateral attack on earlier decision.

Regina v. Horseferry Road Stipendiary Magistrate; ex parte Adams (1977) 1 W.L.R. 1197 - con.

Wentworth v. Rogers, Court of Appeal, Supreme Court of N.S.W., unreported, 8 October 1984 - con.

Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533 - con.

Minister for Immigration and Ethnic Affairs v. Gungor [1982] FCA 99; (1982) 42 ALR 209 - con.

HEARING

SYDNEY
11:3:1985

ORDER

1. Application dismissed.

2. Applicant pay the costs of the second respondent.

DECISION

This is an application made under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act") seeking to review a decision of the first respondent, a stipendiary magistrate, in the course of committal proceedings against the applicant, Eric John Honeysett and others. The applicant has been charged with the following offences:

(1) That between about 26 June 1982 and about 9 September 1983 at Sydney in the State of New South Wales and elsewhere, he did conspire with Charles Lo Surdo (Also known as Lowe), Yau Leung (Peter) Wong, Rifat Hussan Gogebakan, Anthony William Cameron, Samuel Fermia, Peter Michael, Russell Gregory Muir, Mona Veronica Mansfield and divers other persons to import into Australia prohibited imports to which s.233B of the Customs Act, 1901 applied, to wit, narcotic goods consisting of heroin (Customs Act, 1901 s.233B(1)(cb)).
(2) That on 23 December 1983 at Alexandria, N.S.W., he did have in his possession a prohibited drug, to wit, diamorphine (Poisons Act, 1966 (N.S.W.) s.32(l(b)).
(3) That on 23 December 1983 at Alexandria, N.S.W., he did supply a prohibited drug, to wit, diamorphine, in that he did have in his possession a quantity of such prohibited drug in excess of the quantity described in respect of that drug (Poisons Act, 1966 (N.S.W.) ss.32(1)(a) and 45A(4)).
(4) That on 23 December 1983 at Sydney, N.S.W., he did maliciously inflict grievous bodily harm upon Richard James Paynter (Crimes Act, 1900 (N.S.W.) s.35).
(5) That on 23 December 1983 at Alexandria, N.S.W., he did maliciously wound Richard James Paynter with intent thereby to prevent his lawful apprehension (Crimes Act, 1900 (N.S.W.) s.33).

2. The applicant was charged with the first four of these offences on 23 December 1983. He was charged with the fifth offence on 28 December 1983. The applicant appeared at the Court of Petty Sessions, Paddington, on 31 January 1984 before the first respondent who was then hearing committal proceedings against the persons named in the first charge and others. The committal proceedings commenced on 21 November 1983. On the application of the informant, the first respondent ordered that the charges against the applicant be heard concurrently with the charges against his co-defendants. The applicant thereupon sought relief in the nature of prohibition from the Supreme Court of New South Wales to prevent his joinder in the committal proceedings. On 3 February 1984, Yeldham, J., after noting a submission on behalf of the Commonwealth Crown that exclusive jurisdiction in the matter was vested in this Court (see Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533), dismissed the application on discretionary grounds, having satisfied himself that arrangements had been made for the applicant to receive a copy of the transcript of the part-heard committal proceedings.

3. The hearing of the committal proceedings continued in February and March 1984. On 14 March 1984, the first respondent committed Gogebakan and Muir for trial. On 9 April, the informant closed his case against Fermia who then sought relief from this Court under the Judicial Review Act. He sought an order staying the committal proceedings and a declaration that the first respondent should not proceed further to make a decision as to whether a prima facie case has been made out or to otherwise proceed pursuant to s.41 of the Justices Act, 1902 (N.S.W.) "until all the evidence has been called in the conspiracy". On 19 April 1984, Lockhart, J. dismissed the application.

4. In his reasons for judgment, Lockhart, J. (see (1984) 1 F.C.R. 336 at pp.339-40) referred to the line of authority that, notwithstanding that two or more persons are charged with conspiracy, the magistrate hearing committal proceedings must consider and treat the case of each defendant separately from the case of each other defendant and must carefully distinguish between evidence led by the prosecution against one defendant and admitted only against him from evidence admitted against other defendants. The learned judge acknowledged the well-established practices preventing unfairness to the applicant if he be committed for trial and the Crown seeks to adduce evidence at his trial not led during the committal proceedings before the defendant was committed for trial but led thereafter against the remaining defendants. His Honour was nonetheless of the view that the prosecution was entitled to close its case against the applicant when it chose to do so.

5. On 26 April 1984, a discussion took place before the first respondent as to the future conduct of the committal proceedings so far as they concerned the applicant. Mr. Larbalestier, Q.C. appearing for the applicant, informed the first respondent that Mr. Sully Q.C., who appeared for the informant, had indicated that the informant was about to close his case against the applicant. Mr. Larbalestier mentioned that he had made certain requests of Mr. Sully in respect of the informant's evidence and then said:

"I understand Mr. Sully has the cure of

that problem in his hands and subject to
that its my instructions that (the
applicant) would want me to address you on
the prima facie case and on the other
aspects of s.41 simultaneously and thereby
indicating that in these proceedings in
any event it would not be his intention to
be calling actual evidence."

6. Mr. Larbalestier requested that he be allowed to address on the Friday of the following week (4 May) and indicated that he would take about an hour. The first respondent then agreed with Mr. Sully's suggestion that on the following day (27 April) the question whether a prima facie case had been made out should be dealt with on the basis that if that matter were resolved adversely to the applicant, the question whether the applicant wished to give evidence could be clarified and, if evidence was not to be called, Mr. Larbalestier could address on Friday 4 May.

7. On 27 April, the informant closed his case against the applicant. Mr. Friedlander, then appearing for the applicant, submitted that there was no prima facie case against his client. The first respondent held that a prima facie case has been established in respect of the conspiracy charge and said to the applicant:

"Eric John Honeysett, do you wish to say
anything in answer to the charges; you are
not obliged to say anything unless you
desire to do so but anything you do say
will be recorded and may be given in
evidence against you in evidence at your
trial and you are also informed and are
clearly to understand that you have
nothing to fear from any threat which may
have been holden out to you to induce you
to make any admission or confession of
your guilt but whatever you now say may be
given against you in evidence upon your
trial notwithstanding such promise or
threat."

8. In response to the first respondent's enquiry of the applicant whether he had anything to say, the applicant said that he had been "verballed" and that he was not guilty. Mr. Friedlander then said that subject to the prosecution's agreeing to play certain tapes, the applicant elected not to call evidence.

9. Mr. Sully then said that the next step was for Mr. Larbalestier to make a submission on 4 May pursuant to s.41(6) of the Justices Act. Mr. Friedlander confirmed that the applicant did not propose to call evidence.

10. On 4 May, Mr. Larbalestier put a lengthy submission to the first respondent suggesting that his client had been disadvantaged by what was asserted to be the premature closing of the Crown case. Counsel asked that the finding of a prima facie case against the applicant be "suspended" until the prosecution had presented all its evidence in the proceedings. Anticipating that this application would be refused, counsel then threatened to achieve a similar result by himself calling the prosecution witnesses.

11. The first respondent declined counsel's invitation to "suspend" his decision that a prima facie case had been established and asked Mr. Larbalestier to address him on whether the applicant should be committed. Counsel then asked for an adjournment so that subpoenae could be issued to witnesses sought to be called by the applicant, including witnesses to be called by the prosecution in the case of Lo Surdo. The first respondent refused the application for adjournment. Counsel then indicated that he wished to call as a witness John Alston a prosecution witness then being cross-examined by another defendant. The first respondent indicated that he would allow Mr. Larbalestier to call any witness. However, Mr. Sully contended that it was no longer open to the applicant to call evidence because, at that stage, every part of s.41 of the Justices Act, except sub-s.(6) thereof, was "spent". The first defendant then ruled:

"I said earlier that I would allow you to
call evidence but being reminded by Mr.
Sully that I have completed the steps and
evidence and the defendant was given the
opportunity to indicate whether he wished
to call any witnesses and it was declined.
I then put it over till today for a
submission on the question of Section
41(6) and so the procedure as laid out in
Section 41 has been complied with to that
thus far. It is also, I will also agree
with Mr. Sully that none of the evidence
relied on by the Prosecution for a prima
facie case had anything to do with
evidence by way of tape recordings and at
this stage, Mr. Larbalestier, I am quite
satisfied that under the Section we are
now at the stage where your client having
declined to call any witnesses on the
previous occasion you are now required
whether you wish to take, to avail
yourself of Section 41(6).

MR. LARBALESTIER: That means, Your
Worship -----

BENCH: Address on why he should not be
committed for trial.

MR. LARBALESTIER: And should not call
witnesses, be permitted to call evidence
at this stage.

BENCH: That is so."

12. Mr. Larbalestier next addressed on the merits of the prosecution case. The first defendant held that the evidence raised a reasonable inference of guilt and that "these are matters that should properly be dealt (with) before a jury" (cf. Wentworth v. Rogers, Court of Appeal, Supreme Court of New South Wales, unreported, 8 October 1984). The applicant was then committed for trial on each charge.

13. Although in his application for review the applicant seeks judicial review of a number of decisions of the first respondent, the case was conducted by both parties on the footing that the only matter in contention is the decision of the first respondent refusing the applicant leave to call evidence "at the appropriate time in the committal proceedings". It is submitted that this amounted to a denial of natural justice calling for the intervention of the Court.

14. The general framework of s.41 of the Justices Act is well known and need not be stated (see, e.g. Lamb v. Moss, supra at pp 537-9). For present purposes, the applicant, of course, emphasises s.41(5)(i) which provides that after the defendant has made the statement referred to in s.41(4) or if he makes no such statement, the Justice shall ask him if he desires to give evidence himself or to call any witness on his behalf.

15. In support of his submission that the first respondent erred in refusing to permit him to call evidence, the applicant relies principally upon the decision of the Divisional Court in Regina v. Horseferry Road Stipendiary Magistrate; Ex parte Adams (1977) 1 WLR 1197 where Lord Widgery, C.J. said (at p 1199):

"It is well known that in criminal courts
there is, as a general rule, a right for
the defence to pursue an argument and
call evidence, even though it has
unsuccessfully made a submission of no
case at the appropriate time.

I cannot for the life of me see why a
different consideration should apply to
committal proceedings. I do not see any
objection to the defendant having, as it
was put, two bites of the cherry. It
seems to me perfectly logical that, if the
submission at the close of the prosecution
case fails, the defendant should be able
to call his own evidence and then make
another effort to get the magistrates to
refuse to commit later on."

16. In the present case, at the stage with which we are presently concerned, both as a matter of form and of substance, the applicant was seeking leave to re-open and call evidence notwithstanding a previous election not to do so. It would seem that the first respondent had the power, to be exercised in his discretion, to permit the applicant to re-open for this purpose. It is true that one reading of the transcript of the proceedings suggests that the first respondent believed that he had no discretion in the matter at that advanced stage - in other words, as counsel put it, save for sub-s.(6), the operation of s.41, including, of course, sub-s.(5), was "spent".

17. But even if this were so, a question arises as to the applicant's object in seeking to call evidence and, in particular, to call prosecution witnesses: the second respondent contends that the application for leave to re-open should, in any event, have been rejected as an abuse of the process of the Court. The suggestion is that the applicant sought to call the witnesses in order to challenge, by the backdoor, the ruling of Lockhart, J. that the prosecution could then close its case against the applicant without calling further prosecution witnesses (see Hunter v. The Chief Constable of the West Midland Police (1982) AC 529; Minister for Immigration and Ethnic Affairs v. Gungor [1982] FCA 99; (1982) 42 ALR 209 at p 215).

18. In my opinion, it was open to the first respondent to view the application for leave to re-open as a collateral attack on the decision of Lockhart, J. and as an abuse of process accordingly. Thus, even if the first respondent took an unduly confined view of his powers in the matter, in the exercise of his discretion he should have declined nonetheless to permit the introduction of evidence for the ulterior purpose of by-passing the decision of Lockhart, J.

19. In these circumstances it is not appropriate that the Court's discretion under the Judicial Review Act to interfere in committal proceedings be exercised in favour of the applicant (see Lamb v. Moss, supra at p 546; Seymour v. Attorney General, Full Federal Court, unreported, 7 November 1984): the Court should not lend its hand to assist an abuse of the process of the court in the form of the collateral challenge sought to be mounted. The application should be dismissed with costs.

20. I make the following orders:

1. Application dismissed.
2. Applicant pay the costs of the second respondent.